United States v. Lorenzo Valdez-Garate , 675 F. App'x 773 ( 2017 )

FILED
NOT FOR PUBLICATION JAN 25 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50447
Plaintiff-Appellee, D.C. No. 3:15-cr-00737-LAB
v.
MEMORANDUM*
LORENZO VALDEZ-GARATE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Lorenzo Valdez-Garate appeals from the district court’s judgment and
challenges the 72-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Valdez-Garate contends that the district court erred in denying a minor role
reduction to his base offense level under U.S.S.C. § 3B1.2(b). After Valdez-Garate
was sentenced, the United States Sentencing Commission issued Amendment 794
(“the Amendment”), which amended the commentary to the minor role Guideline.
The Amendment is retroactive to cases pending on direct appeal. See United States
v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016).
The Amendment clarified that, in assessing whether a defendant should
receive a minor role adjustment, the court should compare him to the other
participants in the crime, rather than to a hypothetical average participant. See
U.S.S.G. App. C Amend. 794; Quintero-Leyva, 823 F.3d at 523. In addition, the
Amendment clarified that “[t]he fact that a defendant performs an essential or
indispensable role in the criminal activity is not determinative.” U.S.S.G. § 3B1.2
cmt. n.3(C) (2015). Finally, the Amendment added a non-exhaustive list of factors
that a court “should consider” in determining whether to apply a minor role
reduction. See id. Because we cannot determine from the record whether the
district court followed the guidance of the Amendment’s clarifying language and
considered all of the now-relevant factors, we vacate Valdez-Garate’s sentence and
remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at
523-24.
2 15-50447
Valdez-Garate’s request for remand to a different district judge is denied.
Contrary to his contention, the record does not reflect that the judge has a “deep-
seated antipathy” to properly applying the minor role Guideline, nor are there other
“unusual circumstances” warranting reassignment in this case. See United States v.
Waknine, 543 F.3d 546, 559-60 (9th Cir. 2008).
VACATED and REMANDED for resentencing.
3 15-50447